Kelly Rutherford's Custody Battle: "I'm Afraid I Might Never See My Children Again"

by
Dana Kennedy

September 30, 2015, 1:00pm PDT

THR uncovers new allegations of visa fraud and tax evasion against the actress' ex, Daniel Giersch, as an October trial in Monaco may rule on his application for sole custody of their son and daughter.

This was never supposed to happen. How did the popular blond TV star, swept off her feet by a charming European she met and married in Los Angeles in 2006, end up facing off against her now ex-husband in a Monaco court, high above the Mediterranean, where a judge will decide the fate of their two young, U.S.-born, American-citizen children?

You’ve seen the headlines and the he said/she said accusations flying back and forth between L.A., New York and Europe. Gossip Girl star Kelly Rutherford, 46, her handsome German ex-husband Daniel Giersch, 41 — separated in 2008, divorced in 2010 — and their son and daughter are so photogenic it’s as if their bitter, protracted international custody battle is part of a dark but cheesy thriller, not real life.

"I found out he wasn’t who I thought he was at all," Rutherford tells The Hollywood Reporter. "I was naive. I was totally taken in by him. Then he totally changed. Now he’s gone and he’s got our kids and yet he and his lawyer are calling me a kidnapper and a child abductor. Nobody understands it and I don’t blame them. I don’t understand it myself."

The couple’s next face-off comes October 26 in a courthouse atop "The Rock" in Monaco, just a three-minute walk from the pink princely palace, where a judge is expected to rule on whether the small, wealthy principality will continue to oversee control of Rutherford and Giersch’s son and daughter, Hermes, now 8 and Helena, 6. It is a duty the Monaco court inherited — as a result of a mirror order, which allows one court to enforce the terms set out by a court in another country — after a controversial L.A. court decision in 2012 allowing Giersch to take the children to Monaco to live with him.

According to that decision, the kids were supposed to live abroad with Giersch temporarily while he straightened out an issue with his U.S. work visa, which he claimed was revoked in early 2012. California Superior Court Judge Teresa Beaudet’s decision referred to both him and Rutherford as "excellent" parents but she said that because of Giersch’s visa issues, he would have more trouble getting into the U.S. than Rutherford would have getting into Europe. Therefore, she believed the kids would see both parents more if they lived with Giersch: "The best interests of the children will be served because the relocation plan for France is the only plan that offers the possibility of nearly equal parenting time while Giersch cannot return to the U.S.," Beaudet wrote. She based her ruling in part on her belief that Rutherford’s former lawyer, Matthew Rich — who flamboyantly pulled out his phone in court on Dec. 12, 2011 and said he was calling the U.S. State Dept. to tattle on Giersch — was responsible for Giersch’s work visa allegedly being revoked two weeks later. The claim has been repeated often by Giersch’s legal team when they portray Rutherford as guilty of getting Giersch kicked out of the country, but several experts consulted by THR rejected the notion that Rich’s phone call could have triggered his visa being revoked. Nevertheless, Beaudet’s ruling effectively gave Giersch primary physical custody of the children.

Rutherford with her daughter Helena and son Hermes at a benefit event for the Ovarian Cancer Research Fund on July 25, 2015

Additionally, Beaudet told Giersch to appeal the visa revocation or apply for a new one, and to show he was trying to find a way to return to the U.S. or else the children would be returned to Rutherford’s care in New York. In a check of published visa appeals on the U.S Homeland Security site, THR has not been able to verify that Giersch ever tried to appeal his allegedly revoked visa or obtain a new one, and his legal team did not comment to THR on the subject. THR obtained copies of two letters from the U.S. State Department, one from May 2014 and second from August 2015, saying that Giersch did not have a valid visa or any application for a visa pending.

According to Robert Wallack, a high-powered New York divorce lawyer who, along with Alan Dershowitz, worked briefly on behalf of Rutherford in her custody case, a mechanism outlined by Judge Beaudet in her original rulings called for a review of Giersch’s efforts to get a new visa. The deadline for the visa review was January 10, 2014. Unfortunately, Wallack said, Rutherford was low on money at the time after years already spent on the divorce and custody issues and did not realize she had a deadline in the visa issue. She was representing herself briefly during that period and missed the deadline. By not complying with that deadline, says Wallack, Rutherford essentially waived her right to the visa review.

Hermes and Helena have been living mainly with Giersch and his mother, with whom he reportedly is very close, in the south of France and Monaco since 2012. Giersch filed for sole custody of the kids in Monaco in October 2014; in so doing, Wallack tells THR, Giersch effectively activated the L.A. mirror order in Monaco. THR spoke to lawyers for both Rutherford and Giersch who say that the Oct. 26 hearing will center on whether Monaco or the U.S. will have jurisdiction over the children, an issue that has been as cloudy as everything else in this case for the past six years. The judge also could take up Giersch’s bid for sole custody.

"Everyone would like this to be just a he said/she said case," Rutherford told THR last summer. "But it stopped being that when Judge Beaudet made her [2012] ruling. This mess stems from her decision. So now we’re all sitting in a Monaco court with everyone looking at us like, what the hell are you doing here?"

Rutherford, who was allowed to have her kids with her in New York for the summer of 2015 according to a court ruling made in Monaco on June 22, made a risky and very public move in August. She refused to send Hermes and Helena back to Giersch as scheduled on Aug. 7, saying that U.S. courts, not Monaco, should have jurisdiction over her kids and protect them. "I didn’t want to just put them on a plane when the courts in L.A. and New York told me they didn’t have jurisdiction," Rutherford tells THR. "They’re American kids and they should have protection as U.S. citizens."

Her decision backfired: Giersch’s lawyers filed a writ of habeas corpus and New York State Supreme Court Judge Ellen Gesmer ordered Rutherford to appear in court with her kids. After a brief hearing Aug. 11, Gesmer gave the children’s passports to their paternal grandmother, Rosita (up until then, Rutherford had always been in possession of their passports), who took the kids to the airport and flew back with them to Europe the next day.

Rutherford also has been criticized for not identifying Giersch as their daughter’s father on Helena’s birth certificate in 2009. (Helena was born after Rutherford filed for divorce in late 2008; in 2009 Rutherford obtained a temporary restraining order against Giersch for what the actress said were moments when she and her mother and nanny were "threatened" and "scared" by Giersch.) Rutherford tells THR that the child’s name appeared as "Helena Giersch" on the birth certificate and that she neglected to fill out the rest of the form with Giersch’s name indicating that Giersch was the father only because she was stressed out after the child’s birth. But there never has been any solid evidence presented in court or elsewhere that Rutherford was an unfit mother or had any kind of checkered past.

Rutherford exits the court of the Principality of Monaco on Sept. 3, 2015.

So who exactly is the man whose name was left off the birth certificate? Daniel Giersch showed up in Rutherford’s life like a dream: a handsome, baby-faced European businessman with whom she hoped to have the family and children she always wanted. "He seemed to have the answer to everything," Rutherford tells THR. "He had an air of superiority that I took for confidence. He exaggerated his achievements. My friends thought he was arrogant. I thought they were just being protective. I just fell for his charm. Looking back, the red flag should have been how charming he was."

But digging into Giersch’s history uncovers accusations of fraud, tax evasion and shell companies, according to THR’s review of hours of testimony by Giersch in dozens of depositions in the divorce and custody cases, interviews with sources close to the case in Germany, France, Monaco, New York and California, as well as a crucial 2012 declaration filed in the custody case by Edith Curry, a blunt-talking Richmond, Virginia-based lawyer-turned-white collar crime investigator with the Palaxar Group. Curry spoke publicly for the first time to THR about an outside investigation she did on Giersch five years ago.

Curry, who has nothing to do with Hollywood or the entertainment industry and until she encountered this case "wouldn’t know Kelly Rutherford if she was seated next to me at a dinner party," she says, was hired in 2010 by a group of European businessmen to investigate 10 companies they were interested in acquiring or investing in. A German company called Quabb.com, owned by Giersch, was on the list. Curry said she discovered a pattern by Giersch of immigration fraud and tax evasion which she believed was so serious that she notified the U.S. State Department, the IRS and Homeland Security.

"Unless you comb through all his sworn testimony and flow-charts of what he says, you don’t understand how many lies he’s told," Curry said. "I had to draw pictures and do timelines just to make sense out of it, and this is what I do for a living. He is a master of manipulation."

Subsequent to her investigation, Curry was contacted by businesspeople in Giersch’s native Germany who say they were sued by him. Giersch happened to trademark the name "Gmail" in 2000 and successfully fought off Google for years in Germany over the right to use the Gmail name. He eventually settled with the tech giant but not before suing dozens of people in Germany who were, for example, selling mobile phones that came with a Gmail app. "For Germans it’s incredible to watch what’s happened in the U.S," says Michael Ganss, a Berlin software entrepreneur — one of several German businesspeople interviewed by THR — who says he was one of Giersch’s victims when Giersch sued him for €10,000 (today, about $15,000) over the Gmail name. "Everyone there knows Kelly Rutherford from TV. No one knows Giersch’s ugly past. Giersch looks boyish, almost fragile, but his looks and everything else are deceiving. He’s cold, calculating and very aggressive."

Curry says she has been frustrated and incredulous watching the Rutherford/Giersch custody case unravel. "I haven’t been able to find out anything real about Daniel Giersch," she tells THR. "I can’t confirm anything he’s said publicly as being real except for the fact that he trademarked the name Gmail."

When Curry was hired to look into Quabb.com, an email and cloud provider (Quabb.com was set up in Germany; another Giersch company, Quabb.com LLC, was set up in the U.S. as an investment consultancy, according to Giersch’s filings with the California Secretary of State), she found that Giersch used Quabb.com LLC in his successful 2009 bid for an O-1 visa to enter the U.S. He obtained the visa, which is intended for individuals with "extraordinary ability" to work for U.S. companies, with the help of Eli Rich, an L.A.-based immigration lawyer who signed on as Quabb.com LLC’s registered agent (the official business point person vouching for the company) in 2003. Rich was convicted of visa fraud in 2005 and gave up his license, but he was still listed as Quabb.com LLC’s agent when Giersch got his visa in 2009.

In a 2009 deposition in connection with his divorce from Rutherford, Giersch said that he knew the requirements of his O-1 visa and made other statements indicating that he was not meeting those requirements — including that he had not applied for a Social Security number (THR has seen a copy of a 2007 bridge loan to build a home in Bel-Air on which his SSN is listed as 999-99-9999). In addition, in a 2010 financial disclosure document Giersch filed in connection with the divorce, he said he had last filed taxes in 2000 — another violation of the O-1 visa.

Giersch, Rutherford and son Hermes celebrate the upcoming premiere of The CW's Gossip Girl at Tenjune.

"Giersch evaded taxes and fraudulently entered the U.S using a convicted felon as the registered agent of a shell company," Curry says. "It was all a web of lies. I’m certain of it. I thought Kelly Rutherford must be part of the scheme and he was funneling money through her. But I checked her out and she was clean as a whistle. Giersch has created so many different narratives. He’s able to hide them all behind a series of confusing facades that go nowhere but yet are hard to penetrate because he’s living in Monaco. It’s like trying to grab ahold of running water."

Curry ended up filing a declaration in support of Rutherford in May 2012 during one of the L.A. custody proceedings as a result of another strange twist: Curry mentioned the Giersch case to a colleague, former Deputy Undersecretary of Defense for Counterintelligence Carol Haave, who said she knew Kelly Rutherford because the actress had once played a character based on Haave on E-Ring, a short-lived 2005 NBC military drama. Haave called Rutherford, and Curry called Rutherford’s attorneys.

Veteran Beverly Hills immigration lawyer Barbara Federman, an expert in the custody case, also filed an affidavit with the L.A. court 2012 questioning Giersch’s visa issues. "The judge’s decision was preposterous," Federman tells THR. "She seemed to be pre-disposed to act in [Giersch’s] favor. She wasn’t going to listen to my testimony." Federman adds that even if Giersch’s O-1 visa had been revoked, it’s "absurd" to think that he had no other way to return to the U.S. to see his kids. For example, Federman says, he could have applied for a six-month "business and pleasure" visa had he explained to the U.S. Embassy it was for the purposes of seeing his American-born children.

As evidence to prove his visa was revoked, Giersch produced a copy in court of an email allegedly from the U.S. Consulate in Berlin. But Kate Bondi, a spokeswoman for the State Department, tells THR that any communication about the revocation of a U.S. visa or a decision that a foreign national would no longer be allowed in the U.S. would not come in an email from a local consulate. It would come from Homeland Security in Washington D.C.

"Giersch’s visa was supposedly revoked two weeks after that phone call from Kelly’s lawyer," says Curry. "Do you really think you just call up some guy at Homeland Security on the phone when you’re the lawyer in the middle of a contentious custody battle and get them to revoke someone’s visa by email two weeks later?"

THR has attempted to contact Giersch via email, social media and even knocked on Daniel Giersch’s last known address in Mougins, France in July to no avail. His Los Angeles lawyer, Fahi Takesh Hallin, spoke to THR but said Giersch did not want her to go on the record.

Reading the often-farcical transcripts of hours of custody battle depositions taken from Giersch in L.A. and later via Skype between L.A. and France after he left the U.S. serves to muddy the already murky waters. On one memorable occasion during testimony in the divorce in 2009 Giersch invoked attorney-client privilege rather than answering questions more than 40 times. At various times he testified that he didn’t know who owned Quabb.com, the company he cited as being his own software company on his successful application for a visa, but then later admitted he set it up as a shell. He also said he didn’t know if the company had any employees or where it was located, then backtracked later and said he thought he was the owner. He also indicated that he was supported financially by his mother.

Excerpts from a typical exchange between Giersch, who speaks and writes English fluently, and one of Rutherford’s lawyers about his company, Quabb.com LLC. reveal his evasive answers.

Attorney: Have you ever worked at Quabb.com, LLC?

Giersch: Yes.

Attorney: When did you work at Quabb.com, LLC?

Giersch: I have to look that up. I don’t know exactly.

Attorney: When did you first move to the United States under the O-1 visa?

Giersch: What is "move"?

Attorney: Meaning you entered the United States using your 0-1 Visa. When was that?

Giersch: I do not know exactly. I would have to look that up on my passport. I don’t have my passport with me.

Attorney: Did you work for Quabb.com in 2008?

Giersch: I do not know that. I would have to look that up.

Attorney: What would you need to look at?

Giersch: At contracts.

Attorney: Who has access to the contracts?

Giersch: I would have to ask. I do not know.

It remains to be seen whether Monaco’s courts will themselves decide the fate of the Giersch children or order the U.S. to take back control. "I’m just afraid," Rutherford tells THR. "They lived on a boat in Monaco for awhile and I think Daniel could put them on one again." Her worst fear: "If he’s allowed to keep them there, they could just disappear into the night and I might never see them again."